Is a lesser crime included within a greater charged offense?

California, United States of America


The following excerpt is from People v. Ortega, 19 Cal.4th 686, 80 Cal.Rptr.2d 489, 968 P.2d 48 (Cal. 1998):

This test for included offenses applies to the statutory elements of the crimes or to the specific allegations of the accusatory pleading if different from the statutory language. "Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' " (People v. Lopez, supra, 19 Cal.4th at pp. 288-289, 79 Cal.Rptr.2d 195, 965 P.2d 713; see People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456.)

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